The Legal Side of EXO-M Kris's Lawsuit with SM

[hippodameia.livejournal.com]

As many of us know, leader Kris of EXO-M filed a lawsuit with his company SM Entertainment on May 15th. Response has been pretty explosive amongst fans of the group, and several members from EXO-M and EXO-K have shared their thoughts on the matter, but not a whole lot has been covered in regards to how a lawsuit like this works.

K-pop Group EXO Member Files a Lawsuit against His Agency

Article from Dispatch:

[Q&D] “Does he want to leave the group?”…23 questions about Kris’ lawsuit

In December, 2009, Super Junior’s Chinese member Han Geng left his group. He filed a lawsuit for “confirmation of the exclusive contract’s invalidity”. He took an issue with the contract’s period and profit distribution.

In May, 2014, EXO member Kris is following the path of Han Geng. On the 15th, he filed a lawsuit for “confirmation of the exclusive contract’s invalidity”. He claimed that his contract was violated. Currently, Kris is staying away from his group and the other 11 members are doing their scheduled activities.

[...]

Q. What is this lawsuit called “confirmation of the contract’s invalidity”?

D. It means “I acknowledge that I agreed to the contract but I ask you to check whether it is still effective”. In other words, he acknowledges the contract but he wants to nullify it after a certain point of time. It is a lawsuit that most celebrities file when they deal with excessive schedules or poor distribution of profits. (Lawyer Kim Gyeong-hwan)

Q. Fans still find hope from the fact that it is not a “lawsuit for nullification of the contract”.

D. Both lawsuits intend to nullify the contract. Both have the same purpose of checking the contract’s illegality. However, the difference is when the contract becomes nullified. For “confirmation of the contract’s invalidity”, the plaintiff sets a certain point of time and asks to nullify the contract after that point. (Lawyer Kim Gyeong-hwan)

Q. Setting a certain point of time?

D. For example, let’s say the plaintiff chose March 4th in 2014. Then it means “I acknowledge the contract before that date. However, I cannot honor it after March 4th. Please check whether the contract is still valid after that date.” We don’t know what date he choose. (Lawyer Kim Gyeong-hwan)

Q. If he wants to nullify the contract, wouldn’t it be more effective to file a “lawsuit for nullification of the contract”?

D. That lawsuit denies the contract altogether. Then they have to prove the illegality of the contract’s content itself, which is hard. There are extremely few cases where they win a lawsuit like that. You have to prove the illegality of the accused such as taking excessive profits exploiting the plaintiff’s mistakes or inexperience, proxy contract or fake arranged contract. (Lawyer Seon Jong-mun)

Q. What is the advantage of the lawsuit he filed?

D. If Kris signed a standard contract with SM and SM violated any part of it, there is a high chance that Kris can win. If it is true that SM forced excessive schedules on him, it can be considered a violation. It should be proven to the court. (Lawyer Seon Jong-mun)

Q. This lawsuit looks similar to the case of Han Geng.

D. Han Geng filed a lawsuit for confirmation of the exclusive contract’s invalidity. At that time, the court ruled against SM for the excessively long period of contract, which was 13 years (2005-2018). According to the “standard contract for popular culture artists”, the contract cannot last for longer than 7 years. For singers, it can be longer but the singers themselves can nullify the contract after 7 years at any time they want.

Q. Will the outcome for Kris be similar?

D. Not necessarily. Kris is a different case. When Han Geng signed the contract in 2003, there was no “standard contract”. So unfair clauses might have been included. It is different for Kris. SM has been using the standard contract for all artists since December 2010. Kris might have also signed the standard contract. It is unlikely that the contract itself is illegal. (Lawyer Seon Jong-mun)

Q. What if SM forced excessive schedules on Kris as he claimed?

D. It’s very hard for me to tell because I don’t know what happened between Kris and SM. No company is able to completely comply with the contract. There is always room for violations. If Kris persistently makes an issue of some problematic conduct of SM, there is a chance for him to win. (Lawyer Seon Jong-mun)

Q. If Kris wins the lawsuit, what will happen to the money issue?

D. In a lawsuit for confirmation of the exclusive contract’s invalidity, the contract before the set point is still protected. Hence, Kris doesn’t have to return any profit from his activities under SM until that point. If it was a lawsuit to nullify the contract itself, it would be a different story. They will have to resettle their profit distribution because the whole contract becomes null and void. (Lawyer Kim Gyeong-hwan)

Q. If Kris loses, can SM sue him for damages?

D. Of course. If no violation from SM is proven, the contract remains effective. In that case, SM can blame Kris. For example, they can sue him for financial and psychological damage caused by his absence without consent. However, the companies usually don’t file a counter lawsuit because they acknowledge the service of the artists. (Lawyer Lee Jae-man and Seon Jong-mun)

Q. What about the possibility that Kris filed the lawsuit just to make changes to his contract?

D. Unlikely. When they want to make changes to their contract, they usually negotiate with their agency. There are very few cases where they brought it to the court. Even if Kris originally just wanted to make changes to his contract, he might have failed anyway because he eventually brought it to the court. (Lawyer Kim Gyeong-hwan, Lee Jae-man and Seon Jong-mun)

Q. What will be the next step and how long will it take for the lawsuit to be concluded?

D. In principle, it takes 6 months until the court’s decision. But it may take longer if some adjustments are made in the middle of the process. If Kris wins, he will be free from the contract and he can do independent activities. On the other hand, if SM wins, the contract remains. (Lawyer Lee Jae-man)

Q. What did Kris complain about SM?

D. Kris picked three reasons for the lawsuit. First, unfair treatment. He claimed that he was treated like a component or an object to control rather than a celebrity. Second, inflexible schedules. He claimed that SM went ahead with schedules without asking him for consent or considering his physical conditions. Lastly, profit distribution. He claimed that his agency only showed him simple calculation sheets instead of detailed profit distribution data.

Q. Did SM treat Kris like an object to control?

D. Control is inevitable for rookie idols. It is the same with any other agencies. Most idols are in their late teens or early twenties. They aren’t good at managing themselves yet. Stars rely on their image. A certain degree of control is natural. After the recent Sewol ferry accident, we are more strictly watching on our idols’ behavior. Even if they complain about our control, we can’t help it. How to accept it depends on their own mindset. (Big 3 entertainment agency staff)

Q. Kris is Chinese. Would he have experienced cultural differences with Korean members?

D. Kris belongs to EXO-M consisting of 4 Chinese members and 2 Korean members. Wouldn’t it rather be the Korean members who may feel alienated? Their activities are mainly in China. Korean members are more likely to experience cultural differences. As no other Chinese members raised an issue like that, I don’t think such a problem exists in any significance. (Smaller idol agency staff)

Q. Are schedules forced against their own will or physical conditions?

D. Normally, schedules are settled one month or two in advance. For rookies, their companies often make decisions on their schedules. Of course, the companies explain what kind of activities they will participate in. However, it is hard to predict what kind of physical conditions they will be in on the day of the activity. You can’t know what their conditions will be like in a month. We decide what to do on each day. If a singer is asked to do an activity even when they got a flu, it can be a problem. You have to listen to both sides of the story. (Big 3 entertainment agency staff)

Q. Kris claimed that SM made decisions on every schedule without asking for his opinion.

D. A part of this is inevitable for rookies. EXO is in the second year of their career. They are just losing the label of rookies. In fact, it is hard for rookies to make good decisions on their schedules. Someone has to make decisions for them and lead them. If the agency left it all up to their singers, then someone would file a lawsuit against the agency for not doing their work. It is something rookies have to accept. However, when the singers become experienced after some years, most times, we discuss our schedules together. (Major entertainment agency staff)

Q. Kris raised an issue about profit distribution. He claimed that his agency did not reveal the distribution sheet.

D. SM distributes profits twice a year. The management team gives a briefing to each singer. Some singers attend it with their parents to check the distribution sheet. In smaller companies, they aren’t as professional. They just explain it verbally. The big 3 companies [SM, YG and JYP] are listed on the stock market, so they cannot manipulate their profit distribution. (Former SM manager)

Q. Kris complained about his income.

D. Korean entertainment agencies have the trainee system. They foster trainees and debut them as singers. They invest hundreds of millions of won in this process. They take a lot of risks. EXO members were trained for several years, but when they debuted, the public response was worse than expected. They began to make profits only after promotion of “Growl”. There must have been a gap between the income Kris anticipated and actually distributed income. (Music industry staff)

Q. Do Chinese brokers really exist?

D. The idol groups who receive attention from China are EXO, TVXQ, Big Bang, Super Junior and 2PM. Chinese agencies with huge financial power actively send love calls to them. The idols may think if they can go solo in China, they will be able to make much more money. Han Geng’s case was like that. At the height of Super Junior’s popularity, he suddenly filed a lawsuit against his agency. It is up to each individual’s decision after all. (Smaller entertainment agency staff)

Q. There are other Chinese members in EXO. Is there any possibility for their chain-quitting?

D. The possibility is low. First of all, no other members filed a lawsuit along with him. They aren’t taking action together. Chinese member Tao wrote, “After all, he didn’t come back after deceiving our company and team when we didn’t know what was going on.” Chain-quitting is very unlikely. (Music industry staff)

Q. Will Exo-M’s activities be in trouble without Kris?

D. First of all, they have to do their upcoming concert as a full group and EXO-M’s activities without Kris. Trouble is inevitable. However, it’s unlikely that EXO’s position will be shaken. In EXO-M, Luhan and Xiumin’s popularity is big. Kris’ empty spot is a problem right now but it won’t be an obstacle in the long run. (Big 3 entertainment agency staff)

Q. How do you think the lawsuit will be concluded?

D. SM stated that they will do their best for EXO’s current activities right after Kris’ lawsuit was reported. Since Kris already began a legal battle, it would be hard to expect a smooth agreement. There will likely be adjustments as in the case of Han Geng. Kris will pursue his own career in China. Maybe SM will come up with “Plan B” to fill up Kris’ empty spot. (Music industry staff)

Comments from Naver:

me88****:

The fact that he filed a lawsuit during this busy period means that he has no intention to come back.

rmff****:

I don’t usually like SM but Kris’ fault is big this time.

me88****:

If it was an issue of the contract, why is Kris the only one who made an issue out of 12 members? He abandoned his fellow members to live on his own.

skal****:

It must be like this. He grew up as the only precious son in a rich family. He couldn’t stand the disciplined group life that was expected by SM and trainee life. The effect of the one-child policy in China.

mcca****:

Ha..I’m at a loss for words. A guy who’s supposed to be a leader betrayed his own members..I’m disappointed.

jjas****:

Good. Now Han Geng and Kris can make a duo group named Super Exo.

lvsh****:

Hey, ke ke ke. What kind of company asks an idol in his second year of career for consent to make schedules, ke ke ke. They just do the schedules as they come. Does he think he’s on Cho Yong-pil‘s level? Ke ke ke ke ke.

siri****:

Before considering what SM has done, you should see that everyone in the group has worked hard together to become as famous as now… At least for your fellow members who have helped you become famous, why couldn’t you just finish the upcoming concert? How hard would it be for the remaining 11 members?

porz****:

Even if Kris leaves the group, don’t take a new member. It will be hard to get attached to him.

gain****:
Those who defend Kris must be little kids who had no social life experience. Even for a group project at college, this sort of thing would be considered so irresponsible and inconsiderate. Yes, I think he is spearheading in consideration of other members, too. Indeed, he is spearing his fellow members left and right.

Source: koreaBANG (original article from Dispatch)

Comments

[onlybrandy.livejournal.com]

OK so i don't get it.


Is Dispatch answering their own questions or some from SM?

[floydsastar.livejournal.com]

the person answering the questions is in parentheses after each answer

[luvey.livejournal.com]

interesting, especially the lawyers breaking down certain things. but you can see that this is rather super biased towards SM with the question: "Q. Kris is Chinese. Would he have experienced cultural differences with Korean members?" and using Tao's emotional SNS message.

[princetabi.livejournal.com]

yes omg. I thought this was an SM representative. I'm pretty sure Exo spent more time in Korea than China so of course the Chinese members would feel more lonely and alienated than the Korean members.

[hipployta.livejournal.com]

Ah this biased article pretending to present a neutral position *smh*

Will never get over the implication that Jongdae and Minseok's promotions in China were worse than Yifan's time in Korea predebut and after

I continue to be amazed at the disaster this fandom was last weekend...nobody learns from the past whether SM or the fans

A Canadian suing in Korean courts with Chinese lawyers...ever the international trendsetter Yifan

Also I had this whole rant on Twitter that if it was the employer, SM, changing the contract or removing Kris there'd be way less of an outcry but because the employee is challenging things it's a problem. Man...let me not get started.

The rant was inspired by Chris Christie deciding to toss the pensioner deal from 2011

[lightframes.livejournal.com]

People are so used to employers taking advantage of employees that it's just normal now.

[unbroken-glass.livejournal.com]

lol OT but as a law student who has exams next week, the fact that I understood everything gave me great joy.

[rikayla.livejournal.com]

good luck on your exams!

[tallacori.livejournal.com]

There's way too much emotion in the Naver comments. It's a crappy situation for everybody but people are stretching to gymnastic proportions:

"He couldn’t stand the disciplined group life that was expected by SM and trainee life. The effect of the one-child policy in China."

LMAO, now it's the Chinese Govt's fault? 10/10 perfect landing

[floydsastar.livejournal.com]

i didn't know the one-child policy carried over to canada. the moar you know i guess

good grief

[princetabi.livejournal.com]

so what I'm getting from these netizen comments is that Kris should have stayed with SM for seven miserable years and THEN nullified his contact. smh. Its better that he peaced out before things got worse imo.

[lovelivelife1.livejournal.com]

I didn't get that vide... more like they are upset the members were blindsided so much and the exo's comments didnt help with giving Kris a positive image about the all thing.

Him being chinese probably helped with them siding with SM/EXO

[rosetta16.livejournal.com]

they r rookies, of course the company is not gonna ask them to make decisions cause the company knows best right now (just look at their success) plus, didn’t EXO went missing for like a year because of him? I can see why SM scheduled so many stuff to get the inversion back as fast as possible
I know he is saying this stuff to break the contract without paying compensation but he should just be honest and say this is not for him and leave

[hipployta.livejournal.com]

EXO has been on a wave for a year so SM grinding them down with constant work is kind of ridiculous. They'll have the 3 concerts and the next day Xiumin and Luhan are doing the futsbal tourney...and the next day going to Hong Kong for another concert

You know I find this comment odd...clearly members of EXO are acting, MCing, and doing variety and there was discussion for them to take those paths

SuJu, SNSD, and Shinee has also shown clear career vectoring so decisions are made with their input.

Now mind you we don't know what his lawsuit claims but I haven't seen much career building on the M side of things vs K.

Kris was gone for a month and half and EXO was still promoting the entire year between debut and first comeback lol

[hawk-fry.livejournal.com]

"As no other Chinese members raised an issue like that, I don’t think such a problem exists in any significance"

[allegsiseu.livejournal.com]

I just watched Roommates and it made me side with Kris even more. Poor Chanyeol didn't get back to house until after 5 AM and the house was getting up for the morning. And Nana said that she's so tired she can't be happy and is depressed.

[beanii.livejournal.com]

I thought I was the only one who thought this, he barely has any screen time the past three episodes because he's never in the house in the first place. I've been trying to avoid this issue tbh since I'm so departed from the exo fandom and SM in general so I kept my 2 cents to myself.

The small screen time he does have is cute though.

[rikayla.livejournal.com]

i actually really liked this article, esp the insight from the various staff/lawyer/VIPs. they give a different perspective to kris' contract dispute. buuut ia with hipployta, this article tries to come off as neutral, but as you read along, the article isn't neutral at all. /shrug

[turdferguson.livejournal.com]

omg

(http://tinypic.com?ref=30hr8nt)

[chanxchan015.livejournal.com]

Omg yaaas at this gif

[scheisse.livejournal.com]

as sure as i am that sm is horrible to its talent, i can't imagine it screwed kris over. i highly doubt he wasn't being paid what he was promised, 'cause he probably wasn't promised much to begin with. bringing up the fact that the group didn't begin to profit until growl is important 'cause the talent cannot be paid until they're turning a profit, and that's more than likely in the contract.

i don't even know what it means if kris wins. does it mean he'll win money or just that he can get out of his contract? they can't very well force him to stay with exo.

[obviousgirl.livejournal.com]

Kris winning the lawsuit means he gets his body and soul back.

[icedevil0289.livejournal.com]

This was obviously biased and I definitely sideyed some answers. It was dismissive of any hardships a non korean would face so smh at that. That being said it confirmed that kris has every intention of leaving unlike rumors yesterday where it was only a contract change. Also comparing it to hangeng's case i feel like kris is gonna need more evidence/reasons because sm definitely tightened their contract since hangeng. Iirc his lawyers mentioned rather standard reasons which did not include health related reasons I believe so it might be difficult.

[lovejae23.livejournal.com]

"Their activities are mainly in China. Korean members are more likely to experience cultural differences. As no other Chinese members raised an issue like that, I don’t think such a problem exists in any significance. "

side eyes so hard

fuck u how would you know. so just because the other three aren't suing it means everything is fine and that kris should feel fine too? and really. korean members are more likely to experience cultural differences. really. they ALL do. why do you feel the need to compare. and if we're really comparing, exo-m was really only in china for MAMA. let's just conveniently forget that the chinese members trained in Korea, worked with a korean staff, and promoted solely in korea for growl. and that all the chinese members spoke korean in korea while the korean members always had translators. K.

[hipployta.livejournal.com]

All this truth

[kimishim.livejournal.com]

I would never blame anyone for wanting to nullify their contract with SM considering how much they work their artists. That alone would be enough for me to want to leave. It is insane how jam packed their schedules are and no one should be expected to go through that unless they want to

[bebita19.livejournal.com]

Agreed. I have my favorites, like everyone, but if any of them decided to do the same I wouldn't exactly be heartbroken.

[bebita19.livejournal.com]

Side-eyeing some of these answers. Why were members of staff being interviewed?

[lightframes.livejournal.com]

I laughed when suddenly they started getting answers from the big three agencies. I wish the lawyers could have given their opinions on all the questions.

[tha-x.livejournal.com]

What if SM forced excessive schedules on Kris as he claimed?

There's no if. All major kpop groups are overworked.

[noirsama.livejournal.com]

I'm really afraid that the rest of China-line would get a backlash after this fiasco. Like, people will start pointing at them as black sheep or 'potential betrayer' because of this case. They're (or used to be at least) really close with Kris though, with the sense of camaraderie because of working on foreign land together and so on; so it's really baffled me why would he left them without any warning like that :(

[hipployta.livejournal.com]

It's a lawsuit and if Kris didn't tell them it was likely in his lawyers advice or concerns of SM being aware

The other option is that some knew, probably older members or staff friends, but it's in their best interest to know nothing

I'm actually wondering if that Manager went with him to Canada as part of the negotiation process

[sub-divided.livejournal.com]

I thought he wanted to be an actor - one of the arguments in the case is that SM was turning down his acting offers.

[lightframes.livejournal.com]

After the recent Sewol ferry accident, we are more strictly watching on our idols’ behavior.

???

These companies have to understand people aren't machines. Sometimes they get sick and can't stay on a radio show all night. Pretty sure people don't get sick on purpose or because they're not hard workers.

[windygables.livejournal.com]

I eyed that line too because how in the world does the Sewol tragedy related to idols?

[scarsluv.livejournal.com]

What a biased article! And I doubt that SM only controls rookies' schedules.
the boys have 0 input in exo which sucks because I'm sure fans would be supporting anyway

[iznanassi.livejournal.com]

"me88****:
The fact that he filed a lawsuit during this busy period means that he has no intention to come back."

My opinion from the start. The article is heavily biased, but since the way things panned out are seeming Kris-sided, idk if I really care.

[adorkableninja.livejournal.com]

This is an article written by a Korean media and questions that were answered by Korean staffs. What did we expect, when Korean side is siding with SM? They wouldn't make a neutral article. Same would happen if it was a Chinese media.
Also, laugh at this article for also trying to drag down Geng, particularly the below answer.

The idol groups who receive attention from China are EXO, TVXQ, Big Bang, Super Junior and 2PM. Chinese agencies with huge financial power actively send love calls to them. The idols may think if they can go solo in China, they will be able to make much more money. Han Geng’s case was like that. At the height of Super Junior’s popularity, he suddenly filed a lawsuit against his agency. It is up to each individual’s decision after all. (Smaller entertainment agency staff)

That's one way to see it but that's not necessarily true. He suddenly filed a lawsuit? LOL okay.

[torontok.livejournal.com]

A lot of nonsense in those comments. "One-child policy" my arse

If no violation from SM is proven, the contract remains effective.
That is the literal worst case scenario all around.

[annayism.livejournal.com]

He grew up as the only precious son in a rich family. He couldn’t stand the disciplined group life that was expected by SM and trainee life.

i can't be certain, but i think this comment is pretty much the opposite of what actually was going on...
how the entertainment industry in south korea is run is so disturbing :\